A year after killings, sniper suspect's trial to start today in Va.

Stephen KiehlSun Staff

VIRGINIA BEACH, Va. - A year after a team of serial snipers went on a cross-country rampage that left 14 dead in seven states, the trial of John Allen Muhammad will begin today as prosecutors armed with mostly circumstantial evidence try to paint the ex-soldier as the controlling mastermind behind the attacks.

Investigators have assembled a trove of evidence - which will be laid out in court here over the next several weeks - that includes a loaded rifle found in Muhammad's car, a hole cut into the trunk to serve as a gun port and an accomplice who has admitted his role in the killings.

But the case is not a slam-dunk. There is no direct evidence tying Muhammad, 42, to the crimes. He has not admitted to any of the shootings, and there are no eyewitnesses who saw him in the act of killing anyone.

"There is not as much direct evidence of guilt as the prosecutor would like," said Doug Colbert, a criminal and constitutional law professor at the University of Maryland. "But the real issue is whether the jury's going to be listening to potential weaknesses in the prosecution. Many people will use the evidence they read in the newspaper as proof of his guilt."

Muhammad is charged with two counts of capital murder in the killing of Dean H. Meyers - one of 10 random slayings in Maryland, Virginia and Washington over three weeks last October. Muhammad's trial could last as long as six weeks and include evidence from up to 15 shootings across the country.

The trial begins today with jury selection. Virginia Beach has sent summonses to 140 potential jurors, and lawyers hope to whittle that figure down to 12 jurors and three alternates over the next few days. Opening statements could come at the end of this week or early next week.

The lack of direct evidence may not be such a problem for a jury when it is presented with the totality of crimes linked to Muhammad and his co-defendant, Lee Boyd Malvo, said legal experts. The prosecution's case is expected to include a methodical reconstruction of the bloody road trip that is alleged to have brought the suspects to Maryland.

"From what we know, it appears to be an entirely circumstantial case, but this is not necessarily problematic for the prosecution," said Steven D. Benjamin, a Richmond defense lawyer and president-elect of the Virginia Association of Criminal Defense Lawyers. "A good circumstantial case is often more persuasive than a case which relies upon eyewitness testimony or even a confession."

The circumstantial evidence is substantial, authorities say. A search of the blue Chevy Caprice that is said to have been used in the crimes turned up walkie-talkies, a global positioning device and a laptop computer containing a map that marked the shooting sites with a skull and crossbones.

The car also held, under the backseat, a .223-caliber Bushmaster semiautomatic rifle that ballistic tests connected to 11 of the 13 shootings in the Washington region, including the killing of Meyers at a Manassas gas station. The weapon was found with a live round of ammunition in the firing chamber.

In addition to such physical evidence, prosecutors are expected to put on the stand witnesses who can place Muhammad and Malvo in the vicinity of several of shootings. A witness at a pretrial hearing said he saw the suspects' car outside Benjamin Tasker Middle School in Bowie, Md., one hour before a boy was shot while entering the school.

Also, an employee at the Silver Spring, Md., YMCA testified that he saw Muhammad and Malvo at the gym on the same day that bus driver Conrad E. Johnson was killed in nearby Aspen Hill, Md. Prosecutors are also expected to show a videotape showing Muhammad in an Ashland store in the days before a shooting outside the Ponderosa steakhouse there.

Muhammad is alleged to have stolen a Halloween-themed bag from the store - a bag found in the woods behind the Ponderosa containing a note demanding $10 million for an end to the killings. DNA found on the bag was consistent with Malvo's, according to an FBI lab report made public by prosecutors last month.

Lead prosecutor Paul B. Ebert declined to comment on the nature of the evidence yesterday, but he said in an interview, "We hope to introduce strong circumstantial evidence."

With that much circumstantial evidence, Benjamin says, a bigger challenge for the prosecution may be obtaining the death penalty if Muhammad is convicted. Muhammad is charged with two counts of capital murder - one that provides for the death penalty for killing more than one person in a three-year period and one that calls for death under Virginia's new anti-terrorism law.

That law, passed after the Sept. 11 terrorist attacks, makes killing a person in the commission of an act of terrorism a capital crime. This is the first time the law has been used, and it's not clear whether it will stand up in the appeals process.

But securing the death penalty under the multiple killings law is also problematic. The law requires proof that the defendant was a "principal in the first degree" - in other words, the triggerman. Malvo has admitted to authorities that he fired the fatal shot in some, if not all, of the killings.

Prosecutors say that doesn't matter. "They formed a killing team, and it may have been cowardly, but it was effective," prosecutor Richard A. Conway said at a pretrial hearing. "The defendant was at least an equal partner in that team, and more likely, he was the team captain."

Defense attorneys are expected to argue that only the person who pulled the trigger can be eligible for death. They say Malvo admitted to firing the bullet that struck Meyers in the back of the head, so death should be ruled out for Muhammad.

"Being a member of a killing team will not get you the death penalty," said defense attorney Jonathan Shapiro at a pretrial hearing. "When you're talking about a rifle shot, there's only one person who's part of the killing."

The defense team, meanwhile, has problems of its own. After Muhammad had spent months meeting with psychiatrists hired by his attorneys, he refused last week to be examined by the state psychiatrist. Prosecutors then asked that all mental health testimony be barred from trial, and the judge agreed.

The ruling means the defense will not be able to put on evidence about Muhammad's mental state at the time of the killings, and it may preclude testimony about Muhammad's background that could make him a more sympathetic figure in the eyes of the jury.

"It's a devastating blow to the defense," said Colbert, of the University of Maryland. "This is a man with no prior convictions, who served his country during the gulf war and had some success as a businessman. Something significant happened here, which is why the psychiatric testimony is crucial to the defense."